Citation Nr: 0207366
Decision Date: 07/08/02 Archive Date: 07/17/02
DOCKET NO. 99-22 814 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Whether clear and unmistakable error was involved in an
January 21, 1970, rating decision which assigned a 20 percent
evaluation for service-connected gunshot wound, muscle groups
I and II, right major.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. A. Markey, Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to August
1969.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a June 1999 decision by the Buffalo, New York,
Regional Office (RO) of the Department of Veterans Affairs
(VA) that there was no evidence of clear and unmistakable
error in a January 21, 1970 rating action which established
service connection for a gunshot wound, muscle groups I and
II, right major, and assigned a disability evaluation of 20
percent.
The Board notes that the veteran had also perfected an appeal
regarding the initial evaluation assigned for service-
connected post traumatic stress disorder (PTSD), however, by
a February 2001 statement, the veteran withdrew that appeal.
FINDINGS OF FACT
1. Service connection was established for a gunshot wound,
muscle groups I and II, right major, by the RO in a decision
dated on January 21, 1970, and a 20 percent evaluation was
assigned for this disability.
2. The veteran's medical records, to include service medical
records, reviewed at the time of the January 21, 1970
decision, demonstrated that in April 1967 he had suffered a
through and through gunshot wound to muscle groups I and II.
CONCLUSION OF LAW
The January 21, 1970, decision by the RO, to the extent that
it assigned a 20 percent disability evaluation for the
veteran's service-connected gunshot wound, muscle groups I
and II, right major, was clearly and unmistakably erroneous,
and a 30 percent disability evaluation is assigned from
August 30, 1969. 38 U.S.C.A. § 1110 (West 1991 & Supp.
2002); 38 C.F.R. §§ 3.105, 3.400 (2001); 38 C.F.R. §§ 4.55,
4.56, 4.73, Diagnostic Codes 5301, 5302 (1969).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA) was recently enacted. See VCAA
Pub. L. No. 106-475, 114 Stat. 2096 (2000). However, the
VCAA, with its expanded duties, is not applicable to a claim
for revision or reversal of a final decision on the basis of
clear and unmistakable error. See Livesay v. Principi, 15
Vet. App. 165 (2001) (en banc). Accordingly, the VCAA is not
for application in this matter.
A review of the record reveals that by an January 21, 1970 RO
decision, service connection was established for gunshot
wound, muscle groups I and II, right major, and that a 20
percent disability evaluation was assigned effective August
30, 1969 (the date following the veteran's separation from
service, see 38 C.F.R. § 3.400). The veteran and his
representative contend that the evaluation assigned was
clearly and unmistakably erroneous. Specifically, they point
out that the medical evidence of record at the time, to
include service medical records, demonstrates that while in
service that veteran sustained a through and through gunshot
wound to two muscle groups, groups I and II, and that as
provided by applicable regulations, a 30 percent evaluation
should have been assigned for the disability.
The Board points out that the pertinent VA regulation
provides that where the evidence establishes clear and
unmistakable error, a prior decision must be reversed or
amended. 38 C.F.R. § 3.105(a) (2001). The United States
Court of Appeals for Veterans Claims (hereinafter the Court)
has prescribed a three-prong test to determine whether clear
and unmistakable error exists in a prior determination: (1)
"[e]ither the correct facts, as they were known at the time,
were not before the adjudicator or the statutory or
regulatory provisions extant at the time were incorrectly
applied" (i.e., more than a simple disagreement as to how the
facts were weighed or evaluated), (2) the error must be
"undebatable" and the sort of error "which, had it not been
made, would have manifestly changed the outcome at the time
it was made," and (3) a finding of clear and unmistakable
error must be based on the record and the law that existed at
the time of the prior decision. Russell v. Principi, 3 Vet.
App. 310, 313-14 (1992) (en banc). The Court has further
held that clear and unmistakable error is "the kind of error,
of fact or of law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error." Fugo v. Brown, 6 Vet. App. 40,
44 (1993).
The veteran's service medical records, available for review
at the time of the January 21, 1970, decision reflect that in
April 1967 the veteran sustained a through and through
gunshot wound to the right upper chest that exited the right
back. Contemporaneous records indicate that muscle wounds
about the chest and back were debrided and closed, and that
throughout the remainder of his service, the veteran had
intermittent complaints of chest and back pain.
The report of a November 1969 VA examination notes the
through and through gunshot wound. Examination revealed an
irregular, slightly pigmented (with areas of dispersed deep
pigmentation) scar about the right anterior chest over the
second rib, as well as one about the right posterior medial
to the scapula. Another scar was observed above the left
upper scapula.
Based chiefly on this evidence discussed above, the RO
established service connection for gunshot wound, muscle
groups I and II, right major, and a 20 percent rating was
assigned effective August 30, 1969, under 38 C.F.R. § 4.72,
Diagnostic Code 5302 (1969).
As noted above, the veteran and his representative contend
that, essentially, had the medical evidence of record at the
time of the January 21, 1970 RO decision been appropriately
applied to the relevant regulations, it is clear that a
disability evaluation of 30 percent would have been assigned
for the service-connected gunshot wound, muscle groups I and
II, right major.
A 20 percent disabling under 38 C.F.R. § 4.72. Diagnostic
Code 5302 (1969), contemplated a moderate injury to group II
muscles (the extrinsic muscles of the shoulder girdle). A 30
percent evaluation contemplated a moderately severe injury to
these muscles.
In this regard, it is noted that applicable regulations
provided, in characterizing the type of injury sustained,
that through and through deep penetrating wounds of
relatively short track by single bullet or small shell or
shrapnel fragment were to be considered as of at least
moderate degree. See 38 C.F.R. § 4.56(b) (1969).
However, applicable VA regulations at the time of the January
1970 decision also dictated that muscle injuries in the same
anatomical region, to include region of the shoulder girdle
and arm, were not to be combined, rather the rating for the
major group affected was to be elevated from moderate to
moderately severe, or from moderately severe to severe,
according to the severity of the aggregate impairment of
function to the extremity.
In this case, the evidence clearly shows that the veteran
sustained through and through wound involving muscle, and as
such, the disability was to be considered as of at least
moderate degree, but since two muscle injuries were involved
(to the area of the right chest or anterior, and the back or
posterior) in the same anatomical region (the right shoulder
girdle and arm), the rating for the group II muscle injury
(the anterior injury) should have been elevated from moderate
to moderately severe, and a 30 percent evaluation should have
been assigned.
Clearly, had the applicable regulations been correctly
applied to the evidence of record (or had all such
regulations been applied) at the time of the January 21, 1970
decision, the veteran's service-connected gunshot wound,
muscle groups I and II, right major, would have been rated as
30 percent disabling as a moderately severe group II muscle
injury.
The Board points out that the facts in this case are similar
to those in Myler v. Derwinski, 1 Vet. App. 571 (1991), where
clear and unmistakable error was found in a November 1953
rating decision which failed to assign a rating of at least a
moderate degree of disability for a through-and-through
gunshot wound for two muscle groups affected (of the anterior
and posterior thigh) and therefore assign a "moderately
severe" degree of disability to either group.
In sum, the Board concludes that the error in not applying
the applicable regulations to the facts of this case was
undebatable and, had this error not been made, the outcome of
the January 1970 decision would have manifestly changed; and
the Board also concludes that this error compels the
conclusion, to which reasonable minds could not differ, that
the result of the January 21, 1970 would have been manifestly
different but for the error. Fugo; Russell.
As such, the Board finds that the January 21, 1970, decision
which established service connection for a gunshot wound,
muscle groups I and II, right major, and assigned a 20
percent evaluation for this disability constituted clear and
unmistakable error in that a 30 percent disability evaluation
should have been initially assigned. Accordingly, to that
effect the January 1970 decision was erroneous, and a 30
percent disability evaluation for the service-connected
gunshot wound, muscle groups I and II, right major should
have been in effect from August 30, 1969, this date
representing the day after the veteran separated from
service. See 38 C.F.R. §§ 4.55, 4.56 (1969); 38 C.F.R.
§§ 3.105, 3.400(k) (2001).
ORDER
The January 21, 1970, decision, to the extent that it
assigned a disability evaluation of 20 percent for the
service-connected gunshot wound, muscle groups I and II,
right major, constituted clear and unmistakable error and a
30 percent evaluation is granted from August 30, 1969.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.